Canadian HIV/AIDS Legal Network welcomes Crown decision to drop criminal charges in Hamilton HIV case: guidelines needed

Press Release
AIDS ORGANIZATION WELCOMES CROWN DECISION TO STAY CRIMINAL CHARGES IN HAMILTON HIV CASE
But guidelines needed to avoid unsound, unjust prosecutions

TORONTO, April 22, 2010

The Canadian HIV/AIDS Legal Network welcomed the announcement at Hamilton’s courthouse this morning that the prosecution is staying the criminal charge of aggravated sexual assault against Justus Zela. He was charged in February 2009 after an ex-partner alleged they had oral sex without Zela disclosing that he had HIV. The ex-partner has not tested HIV-positive.

“We’re pleased with the Crown’s announcement this morning, but it must go further. This case should never have proceeded in the first place, and the charges should be withdrawn entirely,” said Richard Elliott, Executive Director of the Canadian HIV/AIDS Legal Network. “There was never any solid basis for significant risk of transmission. It’s a misguided overreaction to lay and pursue some of the most serious charges in the Criminal Code when no harm has occurred and the risk of HIV transmission was miniscule at most.”

According to information available to the Legal Network, the charges were based solely on the claim that oral sex had taken place on a few occasions — and mostly with Mr. Zela performing oral sex, rather than receiving it.

“This case is yet another example of why the Attorney General of the province should work with community groups to develop some clear guidelines for prosecutors and police about when criminal charges are, and are not, warranted,” said Elliott. “Guidelines should be informed by the evidence about actual risks of transmission. They should also consider the damage that misusing the criminal law does to individual lives, and how it undermines public health, including HIV prevention efforts, through contributing to misinformation, fear and stigma.”

In 1998, the Supreme Court of Canada ruled that a person living with HIV has a duty to disclose his or her status to a sexual partner only if there is a “significant risk” of transmission, but much uncertainty remains about what this means.

Over the past decade, there has been an alarming increase in both the frequency and severity of charges against individuals with HIV for not disclosing their status to a sexual partner. Prosecutors have pursued serious assault charges even in circumstances where the risk of HIV transmission, already statistically small in any single sexual encounter, has been lowered further by the responsible practise of safer sex. In light of this “criminalization creep,” it is all the more urgent to address legitimate questions about where, as a matter of public policy, we should draw the lines.

Leading organizations and members of the HIV community — including health care providers, service providers, people living with HIV, academics and lawyers — have questioned the expansive use of the criminal law with respect to HIV non-disclosure in Canada. While recognizing that there is a limited role for criminal law on this issue, many legitimate concerns exist as to the impacts of this trend. Not only is studying, evaluating and critiquing the application of the criminal law appropriate, it is absolutely necessary to ensure it is used sensibly and fairly.

About the Canadian HIV/AIDS Legal Network
The Canadian HIV/AIDS Legal Network (www.aidslaw.ca) promotes the human rights of people living with and vulnerable to HIV/AIDS, in Canada and internationally, through research, legal and policy analysis, education, and community mobilization. The Legal Network is Canada’s leading advocacy organization working on the legal and human rights issues raised by HIV/AIDS.

“Criminal Law and HIV”
A series of 5 info sheets on-line at: www.aidslaw.ca/criminallaw

US: Media, police, judge conspire in ‘hate crime’ against gay HIV-positive man in biting case

I am so mad I could spit and bite! I’ve seen a lot of bad reporting and bad legal decisions during my time blogging, but never before have I seen the media conspire with the criminal justice system in such a calculated, prejudiced, stigmatising, and ultimately harmful way.

A gay man from a small city in Michigan who has been harrassed and beaten up by neighbours for years, has been charged with “assault with intent to maim, assault with intent to commit great bodily harm and possession or use of a harmful device” after the latest assault resulted in biting his neighbour the lip whilst he was defending himself.

The story first appeared on October 30th in the Detroit News.

Although police allege [the accused] was the lone attacker — biting neighbor Winfred Fernandis Jr., 28, on the lip following the Oct. 18 confrontation — [the acccused] says he’s long been the target of bigotry on his street, and Fernandis, along with several of Fernandis’ family members, took turns beating him.

“I have no memory of biting him,” said [the accused], who is due in 41-B District Court for a preliminary hearing Monday. He divulged his HIV status after questioning from the media. “This person has been threatening me for years. The hatred needs to stop.”

“He divulged his HIV status after questioning from the media.”

How did that happen? Well, Fox News did some ‘investigating’ and discovered he was HIV-positive. They asked him to confirm it on camera – he did. They then told the bitten neighbour on camera. That’s when it got ugly.

Here’s the Fox News report.


Since HIV is involved, Clinton Township District Court Judge Linda Davis said during a preliminary hearing on November 2nd that just knowing he was HIV-positive and biting the neighbour is enough to sustain these very serious charges, reports a second story in the Detroit News.

“He knew he was HIV-positive, and he bit the guy,” Davis said. “That on its own shows intent.”

No it doesn’t, Judge Davis, because saliva from a bite does not expose someone to HIV. Now she is implicated, along with the police and the complainant (and his wife), in a hate crime.

“I am still maintaining my client is the victim of a hate crime,” [the man’s attorney, James L. Galen Jr.] said. “He will be exonerated. This is the very first battle in what I think is going to be a long war.”

A pretrial and arraignment will take place on November 16th.

South Korea: Korean man gets 18 months for HIV exposure; calls for HIV-specific laws (updated)

Update: October 27th

The 26 year-old Korean taxi driver arrested in March was found guilty earlier this month under South Korea’s public health law for having unprotected sex without disclosure and has been sentenced to 18 months in prison.

Original post: 16th March

The arrest of an HIV-positive taxi driver in Jecheon, North Chungcheong Province last week – originally for “habitually stealing women’s underwear” but now charged under public health law for having unprotected sex without disclosure with at least ten women – has resulted in a resurgence of panic around criminal HIV transmission in South Korea, and calls for HIV-specific criminal laws.

The case was first reported in English on March 13th in the Korea Times.

An AIDS patient in his 20s has had sex with dozens of women in Jecheon, North Chungcheong Province, over the last six years, police have revealed. The Jecheon Police Station said Friday that the patient, identified as Chun, 27, had sexual relationships with waitresses and drunken passengers while working as a taxi driver since 2003.

More details emerged on March 14th at Donga.com.

Police said he neither told his sex partners of his infection nor used contraceptives. A police search of his house found packets of medicine along with women’s underwear. Police grilled Jeon on what the medicine was for and he confessed to being HIV-positive. Police sought an arrest warrant for him yesterday for violating an AIDS prevention law and began tracking the women who had sex with him.

On March 15th, the Korea Times reported that the local sexual health clinic had been flooded with requests for HIV testing following reports of the man’s arrest.

According to the regional office, 61 people have undergone HIV tests, about 12 times the usual figure, since the arrest of 27-year-old cab driver Jeon, Friday. The official said no one was yet found to have the virus, but it will forward test samples to a higher institute for close examination.

On a positive note, public health officials are being extremely responsible and informing the public that the risk of transmission from a single act of unprotected sex is low, particularly since the man is on effective treatment.

According to health authorities, however, chances are low that his sex partners were infected with the deadly virus. Since he was put under monitoring, he has got counseling and medical checkups 30 times and taken regular medication. This means he is as healthy as an ordinary person, a source at the disease control center said. (Donga.com)

However, experts said the likelihood of catching HIV from unprotected sexual activity with someone who is HIV-positive is a mere 0.5 percent. “Since Jeon had been taking drugs to control the virus, the odds could be even lower,” a health expert said. (Korea Times, 15/3/09)

Nevertheless, according to Donga.com.

Domestic law only prohibits those who are HIV-positive from working at entertainment establishments that require regular medical checkups of their employees. Calls are rising for authorities to draw up countermeasures to control the jobs and private lives of HIV-positive people.

And a Donga.com editorial on March 16th appears to support these calls.

The news of an HIV-infected taxi driver who had sex with scores of women has rocked the nation. Medical Web sites are being bombarded with inquiries about AIDS symptoms and applications for the HIV test have jumped ten-fold. Generally, HIV/AIDS patients avoid contact with people because contracting the disease is lethal for their weakened immune system. If a HIV-positive person attempts to purposely spread the disease, however, there is no way to block him or her from doing so. In the wake of the news, calls are rising that the 1987 AIDS prevention law is ineffective to stem the spread of the deadly disease. The country’s AIDS control and prevention system should be urgently revamped.

Update: March 16th, 5pm: An editorial today in the Korea Times blames the public health authorities rather than the individual himself.

It goes without saying that prevention is the best way of containing the spread of HIV/AIDS. Therefore, the government and the health authorities should establish a firm preventive system before it is too late.

US: Military court sends Naval officer to prison for unprotected sex with disclosure

A US military court has sentenced a 37-year-old HIV-positive Naval officer to three months’ in military prison after he pleaded guilty to having unprotected sex with disclosure with two women. The man, an aviation electronics technician who had been in the Navy for 18 years, was also given a bad-conduct discharge and demoted to seaman recruit.

No, you aren’t misreading this. A man has lost his job, his reputation and his liberty for the next three months, after being court martialled for having sex with two women (one of whom is his ex-wife) who consented to unprotected sex.

Clearly, this man’s lawyer, Greg McCormack (a civilian lawyer), and the military judge, Cmdr. Tierney Carlos, have not done their homework. It took me less than an hour to discover previous US Court of Appeals for the Armed Forces (CAAF) judgements that call into question the aggravated assault charge that Petty Officer 1st Class Steven R. Franklin pleaded guilty to.

First, the facts of the case, as reported in The Virginian-Pilot.

The charges stemmed from Franklin’s ignoring written and oral orders not to have unprotected sex. He also was compelled to advise sexual partners that he was HIV-positive and that condoms are not guaranteed to stop the spread of the virus. Franklin, who was diagnosed with HIV in 2003, was reminded of the restrictions every time he visited the HIV clinic at Portsmouth Naval Medical Center, he told the judge. He also signed an order from his commanding officer at the Aviation Intermediate Maintenance Depot in Norfolk in November 2007 pledging to meet those conditions.

Within a few weeks of signing that document, though, Franklin began a new sexual relationship. The couple used condoms for a few weeks but later stopped at Franklin’s request. After the woman learned of his diagnosis, she continued having unprotected sex with him for a few more weeks, according to testimony. The second woman – now his ex-wife – testified at an earlier hearing that she also had unprotected sex with Franklin after learning he was HIV-positive. Neither woman has contracted HIV, according to testimony.

The problem is Cmdr. Carlos’ interpretation of Article 128 of the Uniform Code of Military Justice (assault with a dangerous weapon) as it applies to criminal sexual HIV exposure.

Regardless of the women’s actions, the law does not allow people to consent to a sexual act that could result in “grievous bodily harm,” Carlos explained. Unprotected consensual sex became aggravated assault because of the likelihood it would cause serious harm or death.

That used to be the case, but not any more.

Now, in military law, you cannot consent to aggravated assault. This is due to a 1997 CAAF decision (US v. Bygrave) which held that, in this case, because both women Bygrave had sex with were on active duty there was a compelling Government interest in protecting the health of military personnel negating their informed consent to the risk of HIV transmission.

But a 2006 ruling, upheld in 2008, found that unprotected sex (without disclosure) might not necessarily be aggravated assault if the HIV-positive individual has a low viral load.

Until 2006, the military court’s position on criminal sexual HIV exposure can be summarised in this quote from US vs. Upham (US Coast Guard Court of Criminal Appeals, 2006)

A person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

A specific intent to infect a victim with the HIV virus [sic] or to expose the victim to it is not required for this offense. The accused need only have intended to engage in unprotected sexual intercourse to have committed this offense.

The fact that the alleged victim may have consented to sexual intercourse with the accused is not a defencse to aggravated assault. One cannot consent to an act that is likely to produce death or grievous bodily harm.

In 2008, US v. Upham reached the US Court of Appeals for the Armed Forces (CAAF) which upheld the earlier appeal.

The case of Lieutenant Upham involved him having unprotected sex with a fellow (female) officer (Capt B) without disclosing his HIV status. He testified in his original court martial that since his viral load was low (but detectable)

“there was not a risk of zero transmission,” but testified that he did not believe that he had exposed Cpt B to a fatal disease: “I do not believe that she was going to be infected.”
(US v. Upham, CAAF 2008, p5)

The medical witness testified

that given Appelant’s low viral load, “I cannot say he’s not infectious” (R. at 441-42), but that [Capt B]’s risk of contracting HIV was very low (R. at 465)
(US v Upham, US Coast Guard Court of Criminal Appeals 2006, p 3)

However, when the judge gave intructions for the jury he said

A person who wilfully and deliberately exposes a person to seminal fluid containing HIV without informing that person of his HIV positive status and without using a condom has acted in a manner likely to produce death or grievous bodily harm.

The defense objected to this on the grounds that

“these instructions say that [Appellant] is per se guilty of aggravated assault.” The military judge overruled the objection, and said that instruction “accurately state[s] the that exist[s] today.” (US v Upham, CAAF 2008, p6)

In the 2006 appeal, the court concluded

that the error [of giving this instruction] was prejudicial as to the aggravated assault charge: “Given the medical evidence, it is not inconceivable that the court could have had a reasonable doubt on whether the means employed was likely to produce death or grievous bodily harm.” (US v Upham, CAAF 2008, p6)

The legal arguments are long and complex (maybe even too long and complex for me, a non-lawyer), but what I think they are essentially saying is that the risk of HIV transmission with a low (but not even undetectable) viral load might not have been “likely to produce death or grievous bodily harm” and the jury should have been allowed to decide this rather been told that HIV exposure without disclosure (regardless of other facts) is always aggravated assault.

In the end, Lieutenant Upham was found guilty of the lesser charge of “assault consummated by a battery” and had his prison sentence reduced from eight months to four months. In March 2008, the CAAF upheld this appeal. (However, a similar case was rejected by the C.A.A.F. in May 2008, reported on my blog here, and also discussed on another blog concerned with military law here.)

This is all revelant to the current case because The Virginian-Pilot reports

Franklin…told the judge his HIV is well-controlled and the virus is no longer detectable in certain medical tests.

So, his lawyer should have asked, and/or the judge should known, to consider having the charge reduced from aggravated assault to assault consummated by a battery.

And if there is no aggravated assault, than you can consent, particularly since neither of the women that Franklin had sex with were military personnel, negating the compelling Government interest.

Since Franklin pleaded guilty, it’s not clear that he is allowed to appeal. Let’s hope he, or his lawyer, reads this blog, and finds a way to re-open this egregious example of Government intrusion into the private lives of individuals.

Switzerland: Federal Court confirms Geneva HIV exposure acquittal, but does not mention viral load (updated)

UPDATE July 8th 2009

The Federal Court has now confirmed the recent HIV exposure acquital in Geneva, but shied away from explicitly discussing the link between an undetectable viral load and risk of transmission. In effect: they lacked the courage to change HIV exposure law throughout Switzerland.

According to AIDS Geneva’s Deborah Glejser, the Federal Court upheld the Geneva court’s finding that HIV exposure charges were no longer possible because the two female complainants were not exposed to HIV, but they did not actually discuss why this was the case (i.e. because the defendent was on effective treatment).

A brief report (in French) on 20minutes online, notes that the Federal Court emphasized that the women were not infected with HIV during unprotected sex and accordingly are not considered by the criminal courts to be victims. They could have sued for psychological harm in the civil court, but didn’t, and so “in the absence of such a request, their action can only be ruled inadmissible.”

Deborah Glejser tells me that she is extremely disappointed in the Federal Court since this was “a great opportunity missed.” Although HIV exposure remains no crime in Geneva, it will now be down to individual cases – and prosecutors as forward-thinking as Yves Bertossa – to change the law in Switzerland’s 25 other cantons.

ORIGINAL POSTING July 1st 2009

Video and reports (in French) are now available following the May 18th meeting convened by Group SIDA Geneve (AIDS Geneva) featuring a discussion between Professor Pietro Vernazza, President of the Swiss Federal AIDS Commission (which produced the January 2008 ‘Swiss statement’ on infectiousness) and Yves Bertossa, Geneva’s deputy public prosecutor, (who pushed for the recent HIV exposure acquital in Geneva), moderated by AIDS Geneva’s Deborah Glejser.

The meeting highlighted the importance of the Geneva court’s ruling that an HIV-positive person on successful treatment, with an undetectable viral load, and no other STI, could not possibly be guilty of exposing another person to HIV if they had not disclosed their status before having unprotected sex.

The Geneva judgement has now been appealed by the complainant which means it will now be heard by the Federal Court, Switzerland’s highest court. Mr Bertossa appeared confident that the Federal Court would confirm the acquittal, making the ruling relevant throughout Switzerland (and possibly providing more legal ammunition for other jurisdictions).

Highlights of the meeting are available to watch on the AIDS Geneva blog. The meeting also received mainstream coverage, including a report in L’Hebdo (Switzerland’s answer to Time or Newsweek) and in the main Geneva broadsheet, L’evenement.

Switzerland: Geneva Court of Justice accepts ‘Swiss statement’, quashes HIV exposure conviction

In the first ruling of its kind in the world, a court in Geneva, Switzerland, has quashed the 18 month prison sentence of a young HIV-positive man previously convicted of HIV exposure, after accepting that the risk of sexual HIV transmission on successful treatment is close to zero.

(Update: A more detailed version of this story now appears on aidsmap.com.)

The Geneva Court of Justice acquitted the young man on Monday, reports Le Temps. He had been found guilty last November after two female complainants testified that they had unprotected sex with him (which is against the law in Switzerland, whether or not there is disclosure, and even if the person with HIV is undiagnosed at the time), even though neither were infected.

Article 231 of the Swiss Criminal Code allows prosecution by the police – without the need for a complainant – of anyone who “deliberately spreads a dangerous transmissible human disease.” Informed consent to unprotected sex does not nullify the offence, and even the attempt to spread a dangerous transmissible human disease (i.e. HIV exposure without transmission) is also liable to prosecution.

During the original court case, reports The Geneva Tribune, an (unnamed) medical expert witness had testified that although treatment greatly reduces the risk of transmission, there remained a residual risk. Although the accused’s lawyer, Nicole Riedle, had entered the Swiss Statement from the Swiss Federal AIDS Commision (EKAF) into evidence, and Geneva’s deputy public prosecutor, Yves Bertossa, had wanted to suspend the hearing to interview an expert, the court declined to accept any further evidence.

Interestingly, it seems that it was Bertossa himself who appealed to the Court of Justice for Monday’s hearing, where the expert testimony of Professor Bernard Hirschel, one of the co-authors of the Swiss statement, persuaded the Court that the man had not been infectious when he had unprotected sex.

This now suggests that in Switzerland effectively treated HIV-positive individuals should no longer be prosecuted for unprotected sex, and it is hoped that this ruling may well have consequences for other jurisdictions that have HIV exposure laws.

This is most urgently required in the US and Canada – however, until nationally recognised experts make statements of their own about the beneficial effect of treatment on transmission, neither legal systems are likely to accept it. Sadly, both the CDC and WHO/UNAIDS have so far summarily dismissed the Swiss statement, despite increasing numbers of experts agreeing with it.

Significantly, Yves Bertossa is quoted in Le Temps as saying that despite the fact that there is still debate regarding the residual risks of transmission in people on successful treatment this should not make a difference to the court: “One shoudn’t convict people for hypothetical risks.”

Ce débat, estime Yves Bertossa, ne devrait pas influencer la justice: «On ne condamne pas les gens pour des risques hypothétiques», fait-il valoir.

Canada: Swiss statement on infectiousness fails to impress judge in Mabior case

The trial of Clato Mabior, the Sudanese migrant found guilty on six counts of criminal HIV exposure in Winnipeg earlier this month, was exceptional in a country where trials for criminal HIV exposure and transmission take place on an almost weekly basis.

First, the Mabior case is difficult for those of us who want to challenge criminal prosecutions for HIV exposure or transmission due to the nature of Mr Mabior’s other offences. It has resulted in a strong-worded editorial in the Winnipeg Free Press (see below) which suggests that the Canadian public cares little about understanding important issues such as the effect of treatment on transmission risk, or why disclosure is not necessarily the best way of protecting oneself and others from HIV.

All HIV infected persons are told of their obligations to sex partners. If they break the rules, they should be subject to a health order and police intervention — second chances merely put innocent persons at risk. Mabior’s warped sense of obligation and desperate attempt to rationalize his depraved conduct indicate a need to balance risk with the swift and heavy hammer of police action when trust is breached.

Second, and even more important, the transcript of the verdict by Queen’s Bench Justice Joan McKelvey, who presided over the trial is the first I’ve seen to seriously consider up-to-date science on the effect of HIV treatment on the risks of HIV exposure, as well as deal with the vexing issue of residual risks with condom use.

The defence argued that Mabior’s state of mind was that he did not believe he was infectious, and submitted the recent Swiss statement on the effect of treatment on infectiousness. However, expert testimony from Dr John Smith, who concluded that Mr Mabior may have been uninfectious for some of the time, also stressed that condoms were only 80% reliable. (An excellent review of condom effectiveness by Michael Carter of NAM, can be found here).

The Crown argued that the CDC and WHO disagreed with the Swiss, and this had the effect of persuading Justice McKelvey that the Swiss were probably wrong, that the Swiss statement only applied to monogamous couples with disclosure.

[81] The evidence of the accused’s undetectable viral load and its relationship to HIV transmission was also considered by the Crown. The Crown submitted that there was no evidence to suggest that a significant risk of serious bodily harm did not exist when viral loads were undetectable. There was argued to be a continuing risk that HIV could be passed through sexual intercourse in such circumstances. The issue was not related to a percentage of risk, but instead concerned the potential consequences of transmission, which were described as lethal. If there was any chance of transmission, there was an intolerable risk. The Thornton case was argued to evidence such a finding.

Justice McKelvey concluded the following:

[101] The statements of the CDC and WHO express very well the continuing risks of the transmission of this disease.

[104] I am also persuaded that endangerment of life has been proven in those circumstances where protection was utilized. This finding is supported by the evidence of Dr. Smith that condoms are considered to be only 80% reliable.

[105] This finding of endangerment of life includes those complainants who were exposed while the accused’s viral load was considered to be low, suppressed or undetectable. I have found the medical and scientific evidence to be very persuasive that even with an undetectable viral load, there remains a risk of transmission of HIV with resultant endangerment of life. This is particularly so given the medical evidence that other influences or factors such as STDs or the use of female contraception can affect or “spike” a viral load.

[106] There was a continuing risk that HIV could be passed upon sexual intercourse in all of the circumstances. I find from the evidence that there was endangerment to life for each of the complainants in this case.

She also noted that the Swiss statement – and the publicity about it – happened three years after the events for which Mr Mabior was on trial.

Worryingly, she also found that since that there is residual risk even when condoms are used, due to their 20% ‘failure’ rate, a “significant risk of serious bodily harm existed”.

[116] I am not prepared to follow the decision in Edwards with respect to the issue of protected intercourse based upon the medical evidence which was presented in this case and the “reliability” factor related to condom use. In this context, it is important to recall the evidence of Dr. Smith which stated that condoms are only 80% reliable and constitute an 80% reduction in HIV incidence. (Report, p. 6). Further, cases such as Thornton have demonstrated that a 99.3% screening safety rate was still considered to be too significant a risk in those circumstances. I am persuaded that in those circumstances where protection was used and the accused was regarded as infectious by the medical evidence, that a significant risk of serious bodily harm existed.

However, she did accept that “the combination of an undetectable viral load and the use of a condom would serve to reduce the risk below what would be considered a significant risk of serious bodily harm.”

I have made the 65 page transcript of Justice McKelvey’s ruling available to download as a pdf document (484 KB) in full from my website: here.

(Click here for a page refresh with all postings on the Clabior case)

HIV precedent
Winnipeg Free Press
July 17, 2008

There is a telling element in the case of an HIV-infected Winnipegger convicted this week of having unprotected sex with six young women. His defence rested on his contention that medical science shows the risk of passing on HIV during sex was so low that he had no responsibility to tell his partners he was carrying the AIDS virus.

Clato Lual Mabior, a man who preyed upon vulnerable young women and girls, is an unlikely authority on the relative risks of transmitting HIV. One victim testified that she was raped and that intercourse had been anal and unprotected, much riskier than protected vaginal sex. As well, the health status of the sex partner can change those odds dramatically: A woman with a sexually transmitted disease is much more susceptible to HIV. Mabior had multiple sex partners, increasing risk further.

None of this, however, is germane to the charges he faced. Anyone who does not inform a sex partner he or she has HIV can be found guilty of aggravated sexual assault. Mabior is facing deportation to his native Sudan, after he serves his sentence here. But that can be little solace to his victims, who faced or face years of uncertainty over their own health. It is little comfort to the general public to know that although Mabior was in contact with public health officials who repeatedly warned him of his obligations to his sex partners, he abandoned any sense of responsibility and decency for his own pleasure. He was not served with a public health order, under which he could have been detained, until police charged him with sexual assault. At that point, the Winnipeg Regional Health Authority took the unprecedented step of issuing a public notice, identifying the fact he was HIV-positive.

Mabior, like another man before the courts on similar charges, was given the benefit of doubt by public health authorities, tasked with counselling and monitoring those with HIV and AIDS. The latter man was given repeated warnings, despite officials learning he was having unprotected sex. Understandably, a public health worker treads a fine line as health practitioner and public watchdog, but the cases indicate the pendulum must swing further into the realm of public interest.

All HIV infected persons are told of their obligations to sex partners. If they break the rules, they should be subject to a health order and police intervention — second chances merely put innocent persons at risk. Mabior’s warped sense of obligation and desperate attempt to rationalize his depraved conduct indicate a need to balance risk with the swift and heavy hammer of police action when trust is breached.

Singapore: Man gets a year in prison for HIV exposure via oral sex

The first person to be convicted of HIV exposure in Singapore has been sentenced to a year in prison. Incredibly, the HIV-positive man performed oral sex in a public toilet, which, as I had noted in my previous blog posting on this case, results in no risk to the person being sucked.

In a report from Bloomberg, Dr Andrew Grulich, professor of epidemiology at the University of New South Wales in Australia, commented, “In a case like this where the risk is miniscule, it seems ludicrous to be prosecuting a person.”

There are two reports below: the first from Singapore’s Straits Times reporting the story ‘straight’, and the second, from Bloomberg, with commentary.

Man jailed for not telling boy of risk in first HIV case
Elena Chong
July 14, 2008

IN THE first case of its kind, a 43-year-old HIV sufferer was jailed for 12 months on Monday for having sex with a boy without telling him of the risk of contracting the infection and getting him to agree to accept that risk.

Chan Mun Chiong, a former chef, pleaded guilty to performing oral sex on the 16-year-old boy at the third level male toilet of Northpoint Shopping Centre in Yishun last year.

Deputy Public Prosecutor Royce Wee said that Chan had been diagnosed to have human immunodeficiency virus infection (HIV) since March 1999.

On Sept 15 2007, he was at the mall’s toilet cubicle when he initiated some hand signals under the partition to the victim in the adjacent cubicle, indicating that he was interested to engage in sex.

The duo went one floor up to a cubicle for the disabled. He then performed oral sex on the boy for two to three minutes.

The DPP said Chan did not inform the victim of the risk of contracting HIV infection from him and did not get the boy’s voluntary agreement to accept that risk before the sexual intercourse.

After that Chan asked the victim to turn around, but he refused. Chan persisted but the boy again refused. The victim told him to get out of the cubicle.

Angry, Chan left but followed the victim around the shopping centre. The victim became worried and approached a security officer for help.

The court heard that the boy regretted what Chan did to him and his parents no longer speak to him. The DPP said fortunately, he was not infected.

He asked Principal District Judge Bala Reddy to impose an appropriate sentence on Chan, who could have been fined up to $10,000 and/or jailed for up two years.

Under the new laws passed last month, the penalties have been upped to $50,000 or a jail term of up to 10 years or both.

Singapore Jails Man With HIV for Performing Oral Sex on Youth
by Simeon Bennett

July 15 (Bloomberg) — Singapore jailed a man with HIV for performing oral sex on a teenage boy, the first time the city- state has used its laws to prosecute someone with the virus that causes AIDS, the Straits Times reported.

The 43-year-old chef was sentenced to one year in jail after pleading guilty to a charge he exposed the 16-year-old to HIV without informing him of the risks first, according to the report. The teenager didn’t contract the virus, the report said.

“The risk of transmission of HIV through oral sex is so low that it hasn’t been able to be measured in epidemiological studies,” Andrew Grulich, a professor of epidemiology at the University of New South Wales in Australia, said in a telephone interview from Sydney. “In a case like this where the risk is miniscule, it seems ludicrous to be prosecuting a person.”

Singapore is seeking to curb its HIV infection rate, which has doubled in the past decade. In April, lawmakers passed amendments to laws that make it a crime for a person who doesn’t know their HIV status and has “reason to believe” they may have the virus to have sex without informing a sexual partner or taking “reasonable precautions” to protect them.

The man performed oral sex on the teenager in a shopping mall toilet cubicle in September, the Straits Times reported. After the teenager refused his request for anal sex, he followed him around the mall until the boy asked a security guard for help, the newspaper said.

A spokesman for Action for AIDS, Singapore’s HIV advocacy group, said he needed the approval of a committee to comment.

In the April amendments to the law, Parliament also increased the penalties to a maximum 10 years jail and S$50,000 ($37,000) fine. The man was charged before the amendments came into effect.

So far this year, 192 people have been diagnosed with HIV in Singapore, compared with 167 in the same period last year, according to data on the health ministry’s Web site.

Singapore’s legal age of sexual consent is 16. The city- state also outlaws any act of “gross indecency” between men.

US: Military court discusses viral load and HIV exposure

The issue of whether someone with an undetectable viral load can be guilty of HIV exposure has been discussed in a US court for the first time – the US Court of Appeals for the Armed Forces.

In this extremely interesting article from Gay City News (below) the five-member panel spent some time discussing whether an HIV-positive soldier who had previous pleaded guilty to HIV exposure (actually aggravated assault) could set aside his guilty plea following testimony from a military doctor that he was “highly unlikely” to be able to transmit HIV given his extremely low viral load.

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that X could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace’s testimony that “it was ‘unquestionably’ possible that X could transmit the virus but that the likelihood was ‘extremely low’ due to his low viral load.” Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was “very, very unlikely.”

When pushed to quantify his testimony, Wallace said the probability that Dacus could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

Although the majority did not agree, and did not allow his guilty plea to be set aside, two members of the panel found this expert testimony valid enough to question HIV exposure laws given evolving scientific knowledge of HIV transmission.

HIV Liability At Issue
By: ARTHUR S. LEONARD

A military appeals court ruling on aggravated assault charges against an HIV-positive male soldier who had sex with two women, one without a condom, without disclosing his serostatus provoked an interesting debate about what standard to apply given developing knowledge about transmission of the virus.

A five-judge panel of the US Court of Appeals for the Armed Forces was unanimous in its May 6 ruling rejecting the soldier’s effort to set aside his guilty plea, but two of the judges joined in a concurring opinion suggesting some reconsideration of the issue is in order.

Army Staff Sergeant X, a married man, learned that he was HIV-positive in 1996, and received the usual counseling about his responsibility to use a condom and also inform his partners of his status. Medical testimony in the case indicates that he is one of the rare individuals whose immune system suppresses the virus to an undetectable level without any medication. As a result, he remains asymptomatic and is unlikely to ever develop AIDS.

Military prosecutors charged him with two counts of attempted murder, arising from his adulterous sexual encounters with two women. He used a condom with the first woman, and claimed he barely penetrated her. With the second, however, he did not use a condom, and had an affair that included at least 11 occasions of sexual intercourse.

X did not deny the factual allegations, and in the face of the drastic penalties for attempted murder, agreed to plead guilty to lesser charges of aggravated assault and adultery, both violations of the Uniform Code of Military Justice (UCMJ).

At a sentencing hearing after his guilty plea, Captain Mark Wallace, a military doctor, testified that it was highly unlikely that X could have infected either woman because of his low viral load. Judge Charles Erdmann, writing for the court, noted Wallace’s testimony that “it was ‘unquestionably’ possible that X could transmit the virus but that the likelihood was ‘extremely low’ due to his low viral load.” Wallace acknowledged that there were documented cases of low viral load individuals who had sexually transmitted the virus, but emphasized that this was “very, very unlikely.”

When pushed to quantify his testimony, Wallace said the probability that X could transmit HIV through unprotected sex with a woman was about 1 in 10,000, and that when he used a condom it was 1 in 50,000.

In his appeal, X argued that his guilty plea was inconsistent with Wallace’s evidence introduced at the sentencing hearing. Under military law, conviction on aggravated assault requires that it be established that “the natural and probable cause of exposing” his sexual partner “to the HIV virus is death or grievous bodily harm,” or, put another way, that his conduct was “likely to produce death or grievous bodily harm.”

Applying this standard in prior HIV cases, military courts had taken into account both the probability that the virus could be transmitted and the harm that would be caused if it was transmitted. Erdmann first rejected X’s argument that even if he had infected his partners, they would not have been seriously harmed since he enjoys a very low viral load. That claim was not supported by medical evidence, since Wallace testified X’s low viral load was attributable to the strength of his immune system, not to a weak strain of HIV in his system.

The issue of X being unlikely to transmit the virus to a partner was a more complicated matter. In the past, military courts found that the statutory standard was met if the risk of HIV infection is “more than merely a fanciful, speculative, or remote possibility.” Erdmann wrote that “although the risk of transmitting the virus was low and therefore arguably ‘remote,’ the risk was certainly more than fanciful or speculative.”

This was enough to satisfy the court that X’s guilty plea should not be set aside, but two members of the court, Judges Margaret A. Ryan and James E. Baker, suggested that the issue of risk should be revisited in “an appropriate case.”

Ryan wrote that the standard being applied, though in line with other military rulings, “gives me pause,” and that a 1 in 50,000 chance seems at odds with the intent of the military code. She also noted the UCMJ does not state that “because the magnitude of the harm from AIDS is great, the risk of harm does not matter.” The standard in the statute is whether the conduct is “likely to produce death or grievous bodily harm,” which seems, according to Ryan, a higher standard than the risk being “so low as to approach being no ‘more than merely a fanciful, speculative, or remote possibility.'”

If the case had involved an appeal of a conviction at trial rather than a guilty plea, Ryan and Baker would have been inclined to reconsider it.

Ryan and Baker’s concerns deserve wider discussion in the civilian sphere as well, since many states prosecute HIV-positive individuals who have sex without disclosing their serostatus to partners. The severity of punishment is supposed to reflect the risk facing the uninfected party, yet the occasional appellate decisions that have emerged suggest that courts have been slow to adapt to the unfolding evidence about medical successes in reducing viral loads to undetectable levels and, consequently, lowering the risk of transmission.

Australia: Perth man stabbed with syringe unlikely to have HIV

So much of the reporting I see on HIV-related ‘crimes’ is shoddy and scare-mongering, so I was pleased to see this follow-up story from ABC News online that highlights how hard it is to be infected with HIV by being stabbed in the shoulder with a syringe.

The original story from ABC News online, entitled, ‘Stab victim fears HIV infection,’ had gaven a rather different impression. It’s a shame, though, that ABC News didn’t approach the Health Department before airing their first report.

The Health Department of [Western Australia] says there is a very slim chance a 55-year-old man stabbed with a syringe near the Midland train station has contracted HIV.

The victim was told ‘welcome to the world of HIV’ when he was stabbed in the shoulder by a man he refused to give money to.

The Department’s Director of Communicable Disease Control Paul Van Buynder says there has never been a case in WA of a person contracting the virus after being attacked by someone with a syringe.

“There was one health care worker in the last 25 years while we’ve been monitoring this that did sustain a needle stick injury with a known HIV positive patient and that patient did seroconvert despite taking medication at the time, but that’s the only case in the last 25 years in Western Australia,” he said.

Dr Van Buynder says even if the assailant had the virus there would only be a three in one thousand chance of the man contracting it.

“The risk of Hepatitis C and Hepatitis B, which are more infectious diseases, is higher than the risk of HIV, but again it relates to the possibility of the assailant themselves being infected.”